Direct Result of Disaster

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Between August 26 and September 5, 2011, heavy rains from Hurricane Irene caused damage throughout the state of New York.  A major disaster (FEMA-4020-DR-NY) was declared on August 31, 2011.  Flood and storm water runoff from the Kroma Kill River damaged Lohnes Road, which is owned and maintained by the Town of Stillwater (Applicant).

The Kroma Kill River flows from north to south through the arch culvert.  A partial concrete and stone headwall exists at the culvert inlet.  The culvert pipe extends past the existing slope into the Kroma Kill River and at the outlet no headwall or flared end section exists.[1]

The site incurred damage to the asphalt road surface, road bed, both sides of the embankment, rip rap, and gravel.  Additionally, scouring occurred along the sides of the arch culvert.[2]

On February 1, 2012, the Applicant’s engineer prepared a damage report stating that the culvert was impacted by both Hurricane Irene and Tropical Storm Lee.[3]  The damage report states that: “it is suspected that water ran along the culvert’s axis outside the culvert, and significant scouring was observed at the outlet of the culvert.  These actions lead to the undermining of the existing road as well as significant erosion at the outlet side of the culvert.”[4]

FEMA prepared Project Worksheet (PW) 6452 for the damage to the road surface, road bed, embankments, rip rap and gravel.  On May 31, 2012, $7,973.52 was awarded for the scope of work on these elements.[5]  However, the arch culvert was ineligible because “no damage was identified or determined to be a direct result of the disaster.” [6] 

First Appeal

On July 16, 2012, the Applicant submitted its first appeal through the New York State Division of Homeland Security (Grantee) challenging the determination that the arch culvert was not damaged as a direct result of the declared event.[7]  The Applicant noted that additional roadway subsidence above the culvert had been recently discovered.[8]  The Applicant reiterated the engineer’s observation that: “[i]t suspected the storm runoff water associated with Hurricane Irene and Tropical Storm Lee ran along the axis of the culvert, which in combination with suspected scouring at the culvert’s outlet, lead to significant erosion and roadway subsidence at the culvert location.”[9]

On September 12, 2012, the Applicant’s engineer sent a letter to the Grantee, reiterating the arguments contained in the February 1, 2012 letter.  The letter states that the conveyance of stream flows in and around the culvert has led to additional scour affecting the arch culvert stability.  The letter does not specify damage to the arch culvert.[10]

The Applicant’s engineer sent another letter to the Grantee on July 11, 2013, requesting a joint Applicant/Grantee site visit.  The letter also documents pavement subsidence above the arch culvert but does not specify damage to the arch culvert.[11]

The Region II Acting Regional Administrator (ARA) denied the Applicant’s first appeal on August 26, 2013.  The ARA found that the Applicant had not provided sufficient documentation to establish the condition of the arch culvert prior to the disaster.  In addition, she found that the engineering report does not determine that Hurricane Irene compromised the integrity of the arch culvert. [12]

On October 4, 2013, after issuance of the first appeal decision, the Applicant’s engineer sent additional information to the Grantee.  The letter included observations from a July 24, 2013, site visit, a September 25, 2013, visual inspection and photographs.[13]  The Grantee forwarded the additional information to FEMA on October 8, 2013.  The Grantee believes that the site visit observations and the photographs indicate latent damages to the arch culvert and recommended eligibility.[14]

On March 10, 2014, FEMA responded to the Applicant’s January 29, 2014, request for a new first appeal for replacement of the arch culvert.  FEMA denied the request reasoning that the first appeal decision was previously made on August 26, 2013 and will not be reconsidered.  FEMA Region II again informed the Applicant of the process to submit a second appeal.[15]

The Applicant wrote to the Grantee on May 7, 2014, requesting a meeting with the Grantee and FEMA about pursuing a second appeal.[16]  On July 31, 2014, the Applicant sent a letter to the Grantee following a phone call that occurred the same day.  The letter concluded that the Applicant was ready to help secure a second appeal request.[17]

Second Appeal                                                              

On August 20, 2014, the Applicant sent its second appeal through the Grantee.[18]  In support of the appeal, the Applicant provided a correspondence chronology, a summary of the correspondence, a site location map, a soils map, site photographs, a culvert replacement concept plan, and copies of all correspondence.  It also included a letter from the neighboring Saratoga National Historical Park Superintendent[19] and a letter from the Applicant’s Highway Superintendent.[20]

The Applicant attributes the late second appeal filing due to circumstances beyond its control, such as on-going parallel communication between the Applicant and the Grantee, which also prevented FEMA from receiving all the relevant information.  As for work eligibility, the Applicant asserts that, as expressed in numerous correspondence, “the subject culvert was impacted as a direct result of Hurricane Irene and Tropical Storm Lee.”[21] 

The Highway Superintendent’s letter states that his department staff traveled over and reviewed the township roads once a week or more and found no evidence of arch culvert failure on Lohnes Road prior to Hurricane Irene and/or Tropical Storm Lee.  The Highway Superintendent opines that the road was damaged from the pressure of the high water flowing on the outside of the arch culvert during the hurricane and that it would need to be replaced to successfully repair the damage.[22]

The Saratoga National Historical Park Superintendent’s letter provides his observation that the series of culverts on the Kroma Kill always functioned properly before the storm.  The park service road crews noted the arch culvert was breached after Hurricane Irene.  He also wrote that the Applicant performed interim repairs and stabilization to Lohnes Road at Kroma Kill after the declared event.[23]

Discussion

Timeliness of Second Appeal

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 (Stafford Act) requires an Applicant to appeal a denial regarding eligibility for, from, or amount of Public Assistance within 60 days after the date on which it was notified of the denial.[24]  Pursuant to 44 C.F.R. § 206.206, which implements Section 423 of the Stafford Act, the Grantee must submit appeals from an Applicant, with a written recommendation, to the Regional Administrator within 60 days of receipt.[25]  Neither the Stafford Act nor 44 C.F.R. provides FEMA authority to grant time and extensions for filing second appeals.

The first appeal decision was issued on August 26, 2013, and the decision informed Applicant that the “second appeal must be submitted to [the Grantee’s] office within 60 days of the [A]pplicant’s receipt of this determination.”[26]  Applicant’s second appeal letter is dated August 20, 2014, 359 days later.[27]  The Applicant claims that it received notice of the first appeal decision on December 17, 2013; 245 days before the date of the Applicant’s second appeal letter.  In a letter dated March 10, 2014, FEMA Region II informed the Applicant of their second appeal rights a second time.  Even when considering this date, the Applicant submitted their second appeal 162 days late.  

The deadline to submit a second appeal was not met.  As such, the Applicant’s second appeal failed to meet the procedural requirements of 44 C.F.R. § 206.206(c)(2) and consequently is denied.  Timeliness aside, as described below, the second appeal is not compelling on the substantive issues and would otherwise be denied.

Damage to the Arch Culvert 

Pursuant to 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[28]  This matter turns on three facts: 1) the engineering report is inconclusive as to which disaster caused the damage; 2) The Applicant has not provided maintenance records to support the opinions of the Highway Superintendent and Saratoga National Historical Park Superintendent; and 3) The Applicant has not provided sufficient evidence to support the claim that the arch culvert damage was caused by Hurricane Irene.

The observations in the engineering reports are not conclusive.  The language used in the reports is consistently vague, using words such as “presumably” and “suspected.”[29]  The documentation does not establish that damage to the arch culvert was directly caused by the declared event.

FEMA guidance states that for facilities that require routine maintenance, such as the arch culvert, the review of pre-disaster maintenance or inspection reports may be used to verify the pre-disaster condition and to assess eligible disaster damage.[30]  The letters from the Highway Superintendent and the Saratoga National Historical Park Superintendent include drive-by and casual observations.  The Applicant has not supplied any pre-disaster maintenance records or inspection reports for the arch culvert. 

Additionally, the appeal documentation includes several statements that Tropical Storm Lee also likely contributed to the arch culvert damage.[31]  For example, the engineer’s October 4, 2013 letter, the Superintendent of Highway’s August 14, 2014 letter, and the Applicant’s May 31, 2014 letter, each mention the damage was caused by Hurricane Irene and Tropical Storm Lee.[32]  Most importantly, the Applicant’s August 20, 2014 second appeal letter states that the “the subject culvert was impacted as a direct result of Hurricane Irene and Tropical Storm Lee.”[33] 

This disaster declaration, FEMA-4020-NY, is limited to damage caused by Hurricane Irene.  Damage caused by another disaster, including Tropical Storm Lee, is not eligible.  FEMA has no way to determine if damage to the arch culvert was caused by Hurricane Irene.  As such, the Applicant has not provided sufficient documentation to substantiate the claim that the culvert was damaged by Hurricane Irene.

Conclusion

Applicant’s second appeal was not timely filed and is therefore denied.  Timeliness aside, the documentation submitted is insufficient to establish that any damage to the culvert was a direct result of Hurricane Irene.  Thus, the request is not substantiated.